Bills would give docs immunity in med-mal cases

A package of bills introduced earlier this month in the Michigan Senate would create what critics call immunity for doctors who have committed medical malpractice.

Proponents of the legislation say it would help good doctors get out from under devastating medical-malpractice claims while providing no immunity for reckless and incompetent doctors.

“The bills would do a lot of things,” said Southfield attorney Marc Lipton of Senate Bills 1115-1118. “But at their core, they would raise taxes on the state taxpayers or bust the Medicaid budget, or both. They essentially immunize medical malpractice.”

He said that even though the bills are sponsored by Republican senators, every legislator in Lansing ought to oppose them.

“Let’s say you’re a Medicaid patient. When you sue, as a plaintiff, you do get money if you win. But your insurer gets some and Medicaid gets some,” Lipton said. “People will still get hurt, but if they can’t sue, all that means is that the medical-malpractice carriers get to keep all the money.”

It takes tort reform too far, he said.

The Michigan State Medical Society supports the introduced reforms, and was instrumental in drafting them.

Michigan will face a physician shortage unless it becomes a more welcoming place for doctors to do business, according a statement emailed to Michigan Lawyers Weekly.

The email said the MSMS supports the reforms: “[B]ecause studies project that by 2020 the state of Michigan will have a physician shortage of over 4,500 doctors in fields like pediatrics, family practice and general and internal medicine. What’s more, many of Michigan’s cities and urban areas with the largest populations are at risk of becoming underserved.

“As our state struggles to attract and retain high quality physicians to meet the growing health needs of seniors, children and families, common sense tort reform legislation that puts patients first has the ability to make Michigan a much more appealing state in which to start a practice and see patients.”

Setting standard higher

The Association of American Medical Colleges has predicted that in 2010, there were already 13,700 too few doctors nationwide. The problem will only get worse, according to the association, in 2014 when health insurance reform will enable another 32 million uninsured people to get health insurance.

So, critics say that it’s questionable who the reform will help.

Farmington Hills attorneys Brian Benner and Nancy Savageau say they are certain who the bills would harm: their clients.

They said that if the bills pass, for example, their case against Dr. Yasser Awaad and Oakwood Healthcare System will unravel. That would leave as many as 2,000 plaintiffs unable to sue the doctor they say was motivated by an incentive contract and greed to misdiagnose them with epilepsy.

Benner and Savageau have been working on the Awaad cases since 2007, when Amber Lucas’ family came to their firm, Benner & Foran. They said four of the family’s five children were misdiagnosed with epilepsy and were prescribed anti-seizure medications that can cause serious side effects, Savageau said.

The lawsuits against Awaad and the hospital are pending, and the law firm is trying to find as many as 2,000 children treated by Awaad. So far, they are representing 270 families.

They are particularly concerned with SB 1116, which would protect a doctor who says that his or her conduct was an exercise of professional judgment and in the best interest of the patient, which they say that Awaad argued all along.

“I don’t understand why anyone would want to make it harder for injured patients to sue,” Benner said. “Don’t they trust their fellow citizens on a jury to do the right thing?”

Darren McKinney, spokesman for the American Tort Reform Association, said that often fellow citizens and physicians’ patients don’t do the right thing at all for their own health, he said.

“Any time reasonable limits on liability on a health care provider can be enacted, it is a good thing for the practice of medicine,” McKinney said. “Access to health care is improved for all, and pressures on health care costs are reduced.”

He said that Michigan is one of a large and growing majority of states that limit noneconomic damages in medical malpractice cases. The proposed bills would set the standard a little higher, which helps good doctors.

“The notion that there’s a world of doctors who are disinterested and injuring people is absurd on its face,” he said. “That’s not to say that there aren’t doctors with alcohol and drug problems, and who engage in truly reckless behavior. So long as medicine is practiced by human beings, it’s going to be imperfect.”

Putting ‘patients first’?

There is no amount of legislation that can stop a small minority of doctors who have no business practicing medicine, McKinney said. But the bills would go a long way in protecting good doctors without providing any kind of immunity to those rare reckless and inept physicians.

And the laws won’t do a thing to make patients avoid many of their own illnesses, he added.

“People are launching multimillion-dollar lawsuits because their alcoholic, chain-smoking, fat relative died in an emergency room,” McKinney said. “All physicians can do is make the best judgment calls possible. And many people make terrible decisions for their own health.

“If, God forbid, the best good faith action by a doctor turns out to be not the best action, should that patient or patient’s family have the recourse to sue for millions of dollars?”

Sen. Roger Kahn, R-Saginaw Township, is a cardiologist; he sponsored SB 1115. He did not respond to several requests for interview.

However, his office issued a statement, saying that the bills “put patients first, not their lawyers, by preventing trial lawyers from artificially inflating awards.”

Specifically, it creates a “hard cap on damages,” Lipton said, by dictating what order damages are to be paid and reducing present value at a rate of 5 percent a year.

Benner and Savageau say that in their clients’ cases, the non-economic damages are significant.

For example, in one case a young girl had gastrointestinal side effects as a result of the medications prescribed to treat epilepsy she didn’t have. She suffered embarrassing incontinence problems throughout junior high school.

“The kids were told: No sports, no driving, and no sex,” Savageau said.

The economic damages the plaintiffs are seeking include expenses like co-pays for medications and treatment, and parents’ time off work. In some families, the diagnosis led some parents to leave the work force to give their children extra care.

But most of the children are seeking non-economic damages, Savageau said, for something more important than money: their lost youth.

“They’d be tossed out of district court,” she said.

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If you would like to comment on this story, please contact Carol Lundberg at (248) 865-3105 or carol.lundberg@mi.lawyersweekly.com.

Med Mal bills

Senate Bill 1115. Clarifies noneconomic loss to include loss of household or other services, loss of society and companionship, and loss of consortium. Amends the gross present cash value to be the total amount of future damages reduced to present value at a rate of 5 percent per year, compounded annually for each year the damages will accrue. Specifies that after a verdict is rendered in favor of a plaintiff, the order of judgment will be entered against each defendant in the following order: all past economic damages, less collateral source payments; all past non-economic damages; all future economic damages, less medical and health care costs; all future and other health care costs, less collateral source payments; all future non-economic damages reduced to gross present cash value; all taxable and allowable costs; if the plaintiff was assigned a percentage of fault, the total judgment amount will be reduced by the percentage of the plaintiff’s fault; the total judgment will be reduced by the amount of all settlements paid by all joint tortfeasors.

Senate Bill 1116. A defendant would not be liable in “an action alleging medical malpractice if the person’s conduct at issue constituted the exercise of professional judgment. … A person exercises professional judgment if the person acts with a reasonable and good-faith belief that the person’s conduct is both well founded in medicine and in the best interests of the patient.” Further, “If the court determines … that the [defendant] … did not meet the burden of proving that the act or omission was an exercise of professional judgment, the question of whether the person failed to provide the recognized standard of acceptable professional practice or care is a question for the trier of fact to decide. The ruling of the court … is inadmissible as evidence at trial, and the court shall not permit the parties’ counsel to argue any provision of this subsection to a jury.”